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This week, the National Labor Relations Board (NLRB) issued a decision and a rule that could make organizing a union significantly easier for American workers.
First, yesterday the Board recognized that email is one of the primary ways that workers communicate, and that its case law and election rules needed to reflect this reality. The NLRB issued a landmark decision in Purple Communications which opens the door to allowing workers to use employers’ email systems for union purposes — and admitted that it had misunderstood in previous cases how email works. In doing so, it overturned a Bush-era Board decision, Register Guard, which allowed employers to prohibit use of company email for non-work related purposes, including organizing and union purposes, unless the employer can show special circumstances that justify specific restrictions.
In the 2007 decision, the Labor Board analogized email to other employer equipment — such as bulletin boards, telephones, photocopiers and televisions — and found that the employer had a “basic property right to regulate and restrict employee use of company property.” In dissent, Members Liebman and Walsh criticized the Board, stating that the decision “confirms that the NLRB has become the Rip Van Winkle of administrative agencies. Only a Board that has been asleep for the past 20 years could fail to recognize that e‑mail has revolutionized communication both within and outside the workplace.”
Recognizing the changing nature of the workplace, Liebman and Walsh explained that email was becoming the new water cooler, and that the Board fundamentally misunderstood how email systems work. In a passage that reads almost as if written by a millennial to her out of touch grandparents, the two members explained in basic terms to the Board majority the difference between emails and more traditional communication media: “If a union notice is posted on a bulletin board, the amount of space available for the employer to post its messages is reduced. If an employee is using a telephone for Section 7 or other nonwork-related purposes, that telephone line is unavailable for others to use.”
Emails, they explained, were different, because many employees could use the system simultaneously, subject lines clue the employee into whether to read or dispose of the message, and the marginal cost for an email is almost zero.
Yesterday, the Board vindicated Liebman and Walsh’s dissent and held that the majority’s 2007 decision was “clearly incorrect,” and that it “undervalued employees’ core Section 7 [of the National Labor Relations Act] right to communicate in the workplace about their terms and conditions of employment, while giving too much weight to employers’ property rights.” Therefore, employees who have access to work email can use the email system on nonwork time to discuss the terms and conditions of their employment and engage in other organization activity.
In correcting itself yesterday, the Labor Board finally recognized the central place that digital communications has in workers’ lives. The Board recognized that email is different than other employee equipment, and that most employers tolerate the personal use of employer email. Furthermore, the number of employees that “telework” has grown exponentially, with an expected 63 million employees teleworking by 2016. Recent surveys have found that approximately one third of employees report that their employer expects them to stay in touch outside of working hours and 69% frequently or occasionally check their email outside of normal working hours.
Taking these new realities to heart, the Board concluded that email was less like a photocopy machine as it was a “new natural gathering place and a forum in which coworkers who share common interests will seek to persuade fellow workers in matters affecting their union organizational life and other matters related to their status as employees.” In shifting from an equipment analysis to an analysis that recognizes emails as a basic form of communication, the Board finally recognized the ubiquity of emails and the ways in which employer limitations effect workers’ associational rights.
And the Board doubled-down on recognizing the realities of modern communications this morning in a much-anticipated final rule that significantly changes union election procedures. The new rule includes a number of significant benefits for workers who are organizing, including postponing employer litigation over union election issues until after the election takes place to eliminating the waiting period between the time when an election is ordered and when it occurs (the time when many bosses carry out their union-busting campaigns through tactics like firings or threats of closing down a workplace).
But perhaps the most overdue change is the modernization of the “Excelsior List” rules. Prior to today’s rule, employers were required to turn over to the union an Excelsior List, which contained the names and home addresses of workers within seven days after a union election is ordered, so that the union can effectively communicate with all the workers it seeks to represent.
The new rule requires the employer to also turn over any employee email addresses and telephone numbers it possess, and shortens the amount of time management has to turn over the list to two days.
The week’s decisions are two long overdue correctives and will hopefully restore some of workers’ basic rights on the job. Given the bad news for workers from the Supreme Court earlier this week, the correctives are certainly welcome.
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Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.